Supreme Court Protects Non-Profit Donors From Kamala Harris’s Unconstitutional Disclosure Requirements

Earlier today, the Supreme Court released its opinion in Americans for Prosperity v. Bonta, formerly entitled Americans for Prosperity v. Becerra. Through the 6-3 decision, the Court upheld imperative constitutional speech rights, guaranteed by the First Amendment.

Over a decade ago, then California Attorney General Kamala Harris announced a policy requiring all non-profits in the state to disclose their donor lists to the government, arguing that disclosure was necessary to help her protect the public from fraud perpetrated by a very small number of charities each year. As to be expected, non-profits across the state and country had problems with the policy. Those in power in California had a habit of leaking and using information to punish those with which they disagreed. Fearful that disclosure of donors could result in severe, targeted harassment both by the government and its activist allies, AFP filed suit to block enforcement of the bill.

Because of ALEC’s unique experience with intimidation tactics, the organization filed a brief as a party amicus curia in support of AFP. Those who oppose ALEC typically demand the disclosure of donor information and legislative members. When donor or member information is leaked, those who seek to squelch the exchange of ideas and debate take the information and engage in a sustained, harassment campaign against supporters. Their goal is not to engage ALEC in a “battle of ideas,” but to ensure that neither ALEC nor its legislative members have a public voice. As noted in the brief, “The harassers’ ultimate goal has been to ruin ALEC and eliminate its ideas from the public square. The harassment has become more intense and vicious over the years and has continued virtually unabated to this day.”

The harassment does not stop with activists. They were able to enlist the support of Illinois Senator Richard Durbin, who sent letters demanding to know whether certain organizations supported ALEC and, in 2013, chaired a Senate hearing where he criticized ALEC and “bragged that his intimidation tactics led 140 members to reject an ALEC policy proposal.”

In general, California’s policy was so bad, and the 9th Circuits decision protecting the policy so off the beaten legal path that the ACLU, Council on American-Islamic Relations, and the Electronic Frontier Foundation all filed briefs supporting AFP. All broadly supported the proposition that government compelled disclosure of donor information has an unconstitutional chilling effect on free speech. All fear that governments and their political allies will use the lists to target and harass donors of causes unfriendly to the predominant political power in a state.

The Supreme Court agreed with AFP and many of the amicus. California’s policy requiring disclosure was neither “substantially related” to California’s alleged interests nor was it “narrowly tailored” to further those interests. Beyond this, the compelled disclosure of donor information unnecessarily, and unconstitutionally, chilled the exercise of First Amendment rights. As noted by the Court,

“The disclosure requirement ‘creates an unnecessary risk of chilling’ in violation of the First Amendment, indiscriminately sweeping up the information of every major donor with reason to remain anonymous… The gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors: from the American Civil Liberties Union to the Proposition 8 Legal Defense Fund; from the Council on American-Islamic Relations to the Zionist Organization of America; from Feeding America—Eastern Wisconsin to PBS Reno. The deterrent effect feared by these organizations is real and pervasive, even if their concerns are not shared by every single charity operating or raising funds in California.”

The Court’s decision is an important step protecting both freedom of speech and association. In deciding that then-California Attorney General Kamala Harris’s policy is unconstitutional, it ensured that donors and others wishing anonymously to associate with non-profits like ALEC or AFP can do so without the prying eyes of government monitoring such support. ALEC was privileged to tell its story to the Supreme Court and is thrilled to see the Court vindicate the rights of all non-profits and individuals in California.